102 So. 3d 1178
Miss. Ct. App.2012Background
- Avery indicted in Nov 2002 for a drug offense with a firearm-enhancement assessment under §41-29-139 and §41-29-152;
- May 20, 2003, Avery pleaded guilty to possession of methamphetamine (41.5 grams) under §41-29-139(c)(1)(e)
- June 20, 2003, trial court sentenced to 15 years MDOC with 5 to serve, 10 suspended, 5 years probation
- Avery was released on parole in 2004; suspended sentence/probation revoked in 2010 with remainder of ten-year sentence ordered
- Avery filed PCR on March 31, 2011; court dismissed as time-barred under §99-39-5(2) and held no statutory exceptions apply
- Avery appeals asserting double jeopardy, ineffective assistance, and involuntary/unknowing plea
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PCR motion was untimely with no applicable exception | Avery argues fundamental rights exempt the bar | State contends no statutory exception applies | No exemption; motion time-barred |
| Whether Avery’s double-jeopardy claim shows an illegal sentence | Avery claims sentence exceeded plea cap via cap on sentence | State argues court reinstated remaining term within discretion | No violation of double jeopardy; sentence reinstated properly |
| Whether Avery had ineffective assistance of counsel | Counsel failed to object to illegal sentence | No deficient performance shown; claims not proven | No ineffective assistance shown; claims improperly raised in PCR |
| Whether Avery’s guilty plea was knowingly, voluntarily, and intelligently entered | Plea was involuntary due to misapprehensions about sentence | Plea petition shows understanding court may deviate from plea terms | Issues not preserved for review; procedurally barred |
Key Cases Cited
- Parker v. State, 71 So.3d 620 (Miss.Ct.App.2011) (summary dismissal of PCR when no relief appears)
- State v. Santiago, 773 So.2d 921 (Miss.2000) (established standard for summary dismissal and exceptions to time-bar)
- Chandler v. State, 44 So.3d 442 (Miss.Ct.App.2010) (fundamental-rights exception to time-bar requires basis for truth of claim)
- Rowland v. State, 42 So.3d 503 (Miss.2010) (double-jeopardy fundamental-rights consideration limited by procedural bar)
- Burrough v. State, 9 So.3d 368 (Miss.2009) (discretion of sentencing within statutory limits not reviewable on appeal)
- Pruitt v. State, 953 So.2d 302 (Miss.Ct.App.2007) (reinstatement of suspended sentence proper)